Case details

Defense: Accident could not have caused memory problems





Result type

Not present

back, brain, brain injury, cognition, concentration, concussion, head, headaches, imbalance, impairment, mental, neck, non-dominant shoulder., pain, psychological, shoulder, traumatic brain injury
On Sept. 12, 2013, plaintiff Benjamin King, 58, a mechanical drafter/engineer, was driving in Hayward when he entered an intersection on a green light, intending to make a left turn. Shortly beforehand, a vehicle operated by Marco Lat approached the intersection from a cross-street while his light was still green. However, Lat’s light turned red while his attention was diverted to the side, away from the intersection. When Lat looked forward again and noticed that his light had turned red, he braked, but was unable to stop his vehicle before entering the intersection. As a result, he collided with King’s vehicle. King claimed the force of the impact to the left, rear portion of his vehicle spun him 180 degrees counterclockwise, causing him to face the direction from which he had come. He also claimed that he sustained to his head and non-dominant shoulder. King sued Marco Lat (who was initially erroneously sued as “Marco De Guzman”) and the believed owner of Mr. Lat’s vehicle, Maria Lat. King alleged that Mr. Lat was negligent in the operation of his vehicle and that Ms. Lat was vicariously liable for Mr. Lat’s actions. King also alleged that Ms. Lat was liable for the negligent entrustment of the vehicle to Mr. Lat. Ms. Lat denied being an owner of the vehicle. King ultimately dismissed Ms. Lat from the case on the third day of trial, after failing to prove she had any ownership interest in the vehicle and being faced with a motion for nonsuit. Mr. Lat admitted liability for the accident., King claimed he sustained a concussion and experienced a “massive” headache immediately after the accident. He could not recall if he struck his head during the impact, but he claimed he had a 10-second period after the crash during which he could not recall anything. Thus, King claimed he suffered a mild traumatic brain injury. His physical also included a short-lived pain to his neck, back and a non-dominant shoulder. King’s treatment was all obtained at inpatient facilities with the VA Palo Alto Healthcare System six weeks after the accident. His primary care doctor ultimately diagnosed King with post-concussive syndrome. King was then referred to a VA neurologist, who diagnosed King with post-concussive headaches and imbalance, adding that King’s memory loss would require further follow-up. King was ultimately referred for a full neuropsychological evaluation at the VA Palo Alto, which took over 16 hours, spanning four sessions. The evaluation allegedly identified deficits in King’s cognitive functioning, including storytelling memory, which the VA doctors attributed to the subject accident. King claimed his mild traumatic brain injury caused permanent cognitive impairment, including memory loss, difficulty with concentration, word-finding problems, an inability to perform complex mental tasks, headaches, dizziness, and a loss of balance. He also claimed he was permanently disabled due to the issues from his traumatic brain injury. The plaintiff’s treating doctors opined that King’s deficit, not having resolved within a year of the accident, was permanent. They also opined that the deficit would impact King’s social and employment relationships, causing King noticeable embarrassment for the rest of his life. King claimed that his accident-related deficits would prevent him from ever returning to work as a mechanical drafter/engineer. However, since he was out of work at the time of the crash, he claimed a loss of earning capacity, rather than a loss of income. The plaintiff’s expert economist opined that but for the traumatic brain injury, King would have been able to secure work within 37 weeks of the incident and would have continued to work for another 7.5 years thereafter. VA billings and lien documents for King’s alleged treatment totaled slightly over $50,000, but no personnel from the VA appeared at trial in support of the lien. In both opening and closing arguments, plaintiff’s counsel asked the jury to award King over $300,000 for his loss of earning capacity and $800,000 in general damages. Defense counsel argued that the facts did not support a finding that King suffered a concussion or any traumatic brain injury at all. Counsel also challenged the plaintiff’s treating doctors regarding the limited foundation for their opinions and the alleged inconsistencies in the evidence as to the facts, King’s symptoms, and the neuropsychological test data. Defense counsel also argued that King’s loss-of-earning-capacity claim was, in fact, a loss-of-income claim in disguise, noting that King had retained an economist to calculate the loss to the penny. Counsel added that King’s expert economist had assumed King would have found employment within a year of the accident, ignoring King’s testimony that he had been unable to find employment since 1.5 years before the accident, despite his diligent efforts. Counsel also elicited testimony that the economist had never seen any proof that King was unable to work, admitting that he had merely assumed King was disabled. Thus, in closing, defense counsel asked the jury to conclude that King’s alleged symptoms could not be the product of the crash and return a defense verdict. In the alternative, counsel asked the jury to believe the testimony of King’s longtime significant other, who claimed that King’s only complaint shortly after the accident was of back pain. Noting that King never even alleged back pain during the course of trial, defense counsel asked the jury to award no more than $5,000 for that alleged pain.
Superior Court of Alameda County, Oakland, CA

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